Peering down from the press gallery in the Constitutional Court on 17 August 2010 one couldn’t help but notice the asymmetry between the “for” and “against” benches. That was the day that Thembekile Mankayi vs AngloGold Ashanti Ltd was being argued. On the applicant’s side of the court a single attorney “David” (Richard Spoor) stood with a British law student and a social worker passing him ammunition as he aimed his slingshot at the “Goliath” ranged against him – the gold mining industry.
Spoor was in pursuit of a claim for R2,6 million on behalf of his client because “AngloGold negligently exposed him to harmful dusts and gases as a result of which he contracted diseases in the form of tuberculosis, silicosis and chronic obstructive airways which have rendered him unable to work as a miner or in any other occupation”.
AngloGold did not deny the cause of Mankayi’s illness but argued that the R16,300 compensation he had already received under the prevailing legislation was all he was legally entitled to.
En-route to the Constitutional Court, both the High Court and Supreme Court of Appeal had agreed with AngloGold. With an unpaid bill for the advocates he had briefed hitherto, Spoor had no option but to robe himself with an inky cloak, borrow a ruff and seek leave to appeal to the Constitutional Court. He was five days late in doing so because he had been scrambling for money.
Seven months later on 3 March 2011 Judge Sisi Kampepe handed down a unanimous landmark judgment that condoned the late application, granted him leave to appeal and granted Mankayi’s application. Sadly Mankayi had succumbed to his illness the previous week, but the judgment opened the door for every mineworker suffering from silicosis or TB because of unhealthy working conditions underground, to also sue their former employees. That could be as many as 300,000 people. If they each claimed R2,5m the gold mining industry would have to cough up R750 billion. Thus the judgment has the potential to be far more significant than Spoor’s previous success in 2003 when he negotiated a R460m settlement with Gencor mining on behalf of people sickened by asbestosis as a result of Gencor’s asbestos mining operations. The settlement led to the formation of the Asbestos Relief Trust and the Kgalagadi Relief Trust for the benefit of the thousands affected.
“We now know that if the full health and environmental costs of asbestos mining had been anticipated and factored into the risk profile of the industry, asbestos would never have been mined” Spoor says. “The cost benefit ratio was totally skewed against asbestos ever adding public value”.
Empowered by the lessons he had learned about the congenital failure of the mining industry to do full cost accounting he continued along the learning curve to subject the gold mining industry to similar scrutiny. “It was clear they were not dealing with the slow onset chronic health problems and disease burden to society of workers inhaling silica dust.”
It has taken five years for Spoor to get back into court. On the way two other law firms, Abrahams Kiewitz Inc and the Legal Resources Centre have consolidated their efforts to gather and assess possible claimants to mount a class action suit against the mining industry, but the largest courtroom in the Johannesburg High Court was not big enough to accommodate all the legal teams who crowded in to argue whether the necessary and sufficient conditions for a class action suit existed. A head count yielded 65 lawyers in the benches and several more in the public gallery and standing in the aisles. In contrast to the lonely figure he had cut in the Constitutional Court, Spoor was now surrounded by nine advocates to represent worker interests. Alas, journalists could not help noticing that the benches of both sides were overwhelmingly populated by white men.
Since this happened in a country that seems to have lost its way between the Red Sea and the River Jordan in a desert of racial recrimination, that glaring racial and gender asymmetry was always going to threaten to eclipse the substantive issue. Nobody expected that it would be Richard Spoor who would be the catalyst to turn what ought to have been a historic event in the bending of the arc of history toward justice into an ugly race row.
Spoor, who uses Facebook as a confessional to ventilate his thoughts, tried to explain the racial asymmetry (at least from the side of the sick mine-workers’ team) on somebody else’s timeline. It backfired spectacularly. The black legal fraternity, led by the Chair of the Johannesburg Bar Association and President of Advocates for Transformation (AFT), Advocate Dali Mpofu SC, refused to accept Spoor’s apology and retraction, spurned his offer to meet with them and did not rule out the prospect of pressing charges against Spoor in the Equality Court.
“We believe one cannot apologise for harbouring and articulating racist beliefs about the inherent inferiority of fellow human beings”, fumed Dali Mpofu, reading from a statement from AFT on the final day of the case, having been given permission by the court to address the court on the matter.
A succession of opinion pieces from aggrieved black lawyers who interpreted Spoor’s comments as directed at them personally, suggests the issue is not going to blow over.
In the meantime one emergent truth has surfaced. Spoor was probably the only lawyer who could have argued the Mankayi case five years ago. Even if there had been an advocate willing to do so pro bono, none of them had sufficient immersion in the issues or the experience he brought with him fighting Gencor for so long to obtain a settlement for asbestosis victims.
That is not because of the pigmentation or personal values of any lawyers, but because the law remains an ass, as Charles Dickens famously observed, notwithstanding the law reforms that have occurred in the past 200 years. The whole point of Dickens’s oft-quoted line was that, for want of eye-opening real-life experience, the abstract suppositions of the law were prone to idiocy. From a legal layman’s point of view that a sick miner should have the right to sue their former employer for causing them to contract a chronic disease was self-evident. Why should it have needed all that time and money spent to persuade the Constitutional Court to approve it?
Dickens’s other observation about the law, made in Bleak House, seemed to be the real motive energy “…to make business for itself. There is no other principle distinctly, certainly, and consistently maintained through all its narrow turnings. Viewed by this light it becomes a coherent scheme and not the monstrous maze the laity are apt to think it. Let them but once clearly perceive that its grand principle is to make business for itself at their expense, and surely they will cease to grumble.”
Obsession with money and preoccupation with legal abstractions causes another disease: chronic donkey syndrome.
Richard Spoor may appear to be an idiot for some of his posts in the highly virtualised reality of Facebook but he has no rivals with the same experience-based understanding of occupational health and safety jurisprudence.
“Richard the blacksmith has been toiling away in isolation for years in his humble, hot, noisy, gritty workshop forging something new for society –something radical like jurisprudence,” says Dr Jim te Water Naude, with whom Spoor has worked extensively on dust diseases. “He takes a step back to reflect, wiping his face, and some onlooker with sanitised hands says ‘There aren’t enough blacksmiths in there’.”
Had an advocate (black or white) argued the Mankayi case five years ago, with Spoor briefing them, they would probably have still won. What is indisputable is that, had Richard Spoor not gone out on a very brittle limb to argue the case himself, a black female judge would never have had the opportunity to write a ground-breaking judgment that offered some hope for suffering ex-mineworkers and some treatment for the chronic donkey syndrome that afflicts the law.
Neither would any lawyers, black or white, have a large bone of billions of rand in legal fees to fight over.
“Richard Spoor is one of the few lawyers whose track record speaks of someone who has consistently and courageously sought to make the law an instrument of social justice rather than a means toward more money and more power for those who don’t deserve either” says Pasika Nontshiza, a land rights activist and independent ward councillor from Umtata, who has worked with Spoor as a paralegal in the preparation of the case.
Spoor deeply regrets his ill-considered comments – as well as the shallow and highly defensive attitude from his colleagues. “Black lawyers lament that ‘they are on their own’ and cannot expect white lawyers to help them. I have been on my own for 30 years and could do with some help from them myself.”
This article was first published in Noseweek 1 December 2015
